Opinion
No. 05-03-01662-CR
Opinion issued July 12, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F95-35577-LK. Vacated and Remanded.
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
OPINION
In this appeal, Mark Ponciano challenges the adjudication of his guilt for aggravated sexual assault. He claims in two issues that the trial court did not have jurisdiction to revoke his deferred adjudication probation and that he received ineffective assistance of trial counsel. Deciding appellant's first issue in his favor, we vacate the trial court's judgment. Without the benefit of a plea bargain, appellant pleaded guilty to the charge of aggravated sexual assault. On March 14, 1997, the trial court deferred adjudicating appellant's guilt, placing him on three years' probation. On March 14, 2000, the State filed a motion to proceed with adjudication of guilt, and a capias issued for appellant's arrest. On June 15, 2001, the trial court convicted appellant and sentenced him to eight years' confinement. In appellant's first issue, he complains the trial court did not have jurisdiction to adjudicate his guilt because his probationary period had expired by the time the State filed its motion to adjudicate and the trial court issued the capias. We agree. A trial court retains jurisdiction to proceed with an adjudication of guilt, regardless of whether the probationary period imposed on the defendant has expired, if before the expiration the attorney representing the state files a motion to proceed with the adjudication and a capias is issued for the defendant's arrest. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(h) (Vernon Supp. 2004); see also Peacock v. State, 77 S.W.3d 285, 287 (Tex.Crim.App. 2002). In this case, the period of appellant's deferred adjudication probation expired on March 13, 2000 — a day before the State filed its motion to proceed with adjudication and the capias issued. See Ex parte Fulce, 993 S.W.2d 660, 662 (Tex.Crim.App. 1999). Therefore the trial court was without jurisdiction to adjudicate appellant's guilt. See Peacock, 77 S.W.3d at 287. We resolve appellant's first issue in his favor. Due to our disposition of appellant's first issue, we need not address his second. We vacate the trial court's judgment and remand the cause to the trial court for further proceedings. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(c).